Thursday, May 10, 2012

Gowder on Equality and the Rule of Law in Classical Athens

Posted by
Mary L. Dudziak

Equality and the Rule of Law in Classical Athens has just been posted by Paul Gowder, Ph.D. candidate, Stanford University, Department of Political Science, and incoming new faculty member this fall at the University of Iowa College of Law. Here's the abstract:

In this paper, I defend three claims.

First, contra some classicists and legal historians, classical Athens during the democratic period substantially satisfied the demands of the rule of law (excepting its treatment of women, noncitizens, and slaves). I show that arguments to the contrary mostly represent an unduly narrow conception of what might count as law in Athens, one that inappropriately excludes common-knowledge social customs.

Second, Athenians saw the rule of law as serving the equality of mass and elite, oligarchs and democrats: there was no contradiction (again contra some classicists) between the democratic power of the masses and the rule of law. This equality consisted in two topoi frequently deployed in the Athenian legal and social discourse. First is the respect topos, according to which the laws represent respect for the democratic polis. To disregard them is to reveal one's lack of respect for the polis and one’s oligarchic character. Second is the strength topos, according to which the laws are the way that the democratic polis exercises its power: weak members of the masses cannot stand up to strong members of the elite alone, they need the backing of the whole community, and that backing is coordinated through the law; to undermine the law is thereby to undermine the political power of the masses.

Third, this connection between equality and the rule of law explains the most striking fact about Athenian legality, to wit, the otherwise puzzling effectiveness of the amnesty enacted for crimes committed under the Thirty Tyrants. The strength topos explains why the democrats in Athens refrained from avenging themselves against the Thirty despite their opportunity to do so: by doing so, they would have undermined the law, and thereby their own equality. The strength topos led the Athenians to take the internal point of view on the law.

The account of the rule of law deployed in this paper is that developed in my Equality Under the (Rule of) Law, also available on SSRN. This paper serves the function, in part, of demonstrating the cross-cultural applicability of the conception of the rule of law developed in that paper.